Hannaford takes beef with Bedford to high court

By PAT GROSSMITHNew Hampshire Union Leader

CONCORD - An attorney for Hannaford Brothers argued before the Supreme Court on Thursday that the Bedford Zoning Board improperly issued a variance to Market Basket to build a 78,500-square-foot supermarket on Route 114.

Attorney David W. Rayment said that in 2008 the zoning board limited Hannaford to the 40,000-square-foot limit for its store on Route 101 even though it was in the same commercial zone as Market Basket. He said the zoning law limiting single-story buildings to 40,000 square feet was enacted in 2005 as an anti-big box provision of the town's zoning regulations. Hannaford wanted to build a larger store on Route 101, he said, but was barred from doing so.

The town said issues with the land itself limited the size of Hannaford's store.

The zoning board issued a variance for Market Basket, which Rayment argued is a "de facto rezoning of the property" and a doubling of the size of a building allowed in the commercial district. He maintained what Market Basket argued in front of the zoning board - to allow the much larger building - is what the zoning board adopted.

Rayment contended the action taken by the ZBA is illegal and created an unfair playing field, giving Market Basket a competitive advantage over Hannaford when both are in the same zoning district.

Hannaford sued after Market Basket was given the go-ahead in October 2011 to construct the store on property previously home to Golfland miniature golf course and Slammers Sports Bar and Grill, about a half-mile from the intersection of Routes 114 and 101.

A Hillsborough County Superior Court judge in Manchester ruled in Market Basket's favor, saying Hannaford, whose store is 3.8 miles away from the Market Basket site, was not an abutter or aggrieved party and therefore had no right to challenge the decision. Hannaford appealed the lower court's decision.

Elliot said Hannaford wanted to create standing in the case out of nothing more than being a competitor in the same district.

Justice Carol Conboy voiced concern about a variance allowing "such a dramatic difference" in the size of the building. Conboy said variances generally deal with smaller issues, the size of signs or extra lighting.

Mayer told the justices, however, there was nothing to prevent two 30,000-square-foot buildings from being constructed on the site.

He maintained that the 3.8-mile distance between the stores' locations prevented Hannaford from having legal standing.

The Market Basket store is under construction and is expected to open in the spring. Should Hannaford prevail and be granted standing in the case by the Supreme Court, the case would be sent back to a lower court for a ruling on the zoning issues.

Demoulas Super Markets Inc., Market Basket's parent company, bought the Bedford property and another lot on Cote Lane in late 2010 and early 2011 for $3.95 million.

In a separate action, Hannaford is suing the town of Bedford in an attempt to overturn a March town meeting vote at which 70 percent of the voters approved a zoning change converting the Route 114 area at issue from mixed use to commercial 2, which has no footprint restrictions. That case is scheduled for a bench trial in July.